On February 10, 2015, the MSPB issued its decision in O’Brien v. Department of the Army, Docket Number AT-0752-14-0640-I-1, finding that the O’Brien, had put forth new evidence, which, if proven, could support his theory that his resignation was involuntary.

O’Brien’s position with the Army required that he be subjected to random drug testing. On February 5, 2014, a sample provided tested positive for codeine and morphine. Despite claiming that the positive test was due to cough syrup, legally prescribed by a healthcare provider, O’Brien did not provide the prescriptions to the investigators of the positive drug test due to his being told that the agency would not accept prescriptions that were more than six months old (the prescription dated back to 2011). As a result of the positive drug test, O’Brien stated that his supervisor informed him that the agency was planning to remove him. O’Brien submitted his resignation before being removed.

On appeal to the MSPB, O’Brien stated that his supervisor failed to advise him that he had the right to notice and an opportunity to respond before being removed. Moreover, O’Brien claimed that his supervisor told him that he needed to resign immediately before formally being issued the notice of removal, in order to be eligible for retirement benefits, or to be reinstated elsewhere in the government. O’Brien alleged that based upon his supervisor’s statements at the meeting, he went back to his office, and promptly drafted the resignation letter.

After a hearing, the administrative judge of the MSPB ruled for the agency, finding that O’Brien was not coerced into resigning. The AJ believed the supervisor’s testimony that O’Brien came into the meeting with the resignation letter in hand, and that the meeting only lasted five minutes. Furthermore, the AJ found that even if the supervisor had given O’Brien erroneous advice, O’Brien was a supervisor himself and should have known that he would have an opportunity to respond before being removed. Therefore, the AJ did not find the resignation involuntary.

On appeal to the MSPB, O’Brien presented an affidavit stating that he did not provide any prescriptions to the investigator because he had been wrongly informed that he could not provide prescriptions over six months old. Moreover, O’Brien submitted a lab report (which he obtained from the laboratory) showing negative test results, as well as a list of prescriptions dating back to 2011. O’Brien argued that the MSPB should accept the new evidence to show that he resigned based upon misleading information.

The MSPB agreed with O’Brien, finding that the evidence from the laboratory was new, and that he was misled into failing to submit his prescriptions for cough syrup with codeine. The MSPB also pointed out that the legal key to whether or not O’Brien resigned involuntarily was whether or not he made an informed choice. A decision made “with blinders on,” based on misinformation or lack of information, cannot be binding as a matter of fundamental fairness and process. The MSPB concluded that O’Brien’s new evidence of the negative drug test and prescriptions could warrant setting aside the drug test that would be the basis for his removal. Thus, the MSPB remanded the case back to the administrative judge to give O’Brien an opportunity to prove his allegation of agency misrepresentation

* This information is provided by the attorneys at Passman & Kaplan, P.C.